Chapter §17.2 OPEN-COURTS PROVISION OF ARTICLE I, SECTION 10

• Jurisdiction: Oregon

§17.2 OPEN-COURTS PROVISION OF ARTICLE I, SECTION 10

The open-courts provision of Article I, section 10, of the Oregon Constitution protects the public's right to access civil and criminal judicial proceedings. See § 17.2-2. The public's right to access civil and criminal proceedings is also protected by statute (see § 17.2-1), and the First and Fourteenth Amendments to the United States Constitution (see §§ 17.2-3(a) to 17.2-3(c)).

§17.2-1 Relevant Statutory Provisions

The public's right to access judicial proceedings is protected by statute. Under ORS 1.040, criminal actions are public, and civil actions are public unless the parties agree otherwise.

The public may have a statutory right to attend quasi-judicial hearings before a state agency or other public body. The Oregon Administrative Procedures Act (Oregon APA), which governs the administrative actions of state agencies, is silent on whether the public has a right to access. See ORS 183.310-183.750. Many decision-making actions of state and local government entities fall within the purview of the Public Meetings Law (PML). See ORS 192.610-192.710. However, there are significant exceptions to the PML, including an exception for contested case hearings conducted pursuant to the Oregon APA. See ORS 192.690 (listing exceptions). For a more thorough discussion of the scope and application of the Oregon APA and the PML, see Oregon Administrative Law (OSB Legal Pubs 2010) and the Oregon Attorney General's Public Records and Meetings Manual (2010), available at www.doj.state.or.us/public_records/manual/pages/index.aspx >.

The public has a right to examine and copy certain court records and files. See ORS chapter 7. A person also has a right to access the nonexempt records of state agencies and other public bodies under the Public Records Law (PRL). See ORS 192.410-192.505. For a more thorough discussion of the scope and application of the PRL, see Oregon Administrative Law chapter 7, and the Public Records and Meetings Manual.

NOTE: A person with a "direct and tangible" interest in a proceeding also has a common-law right to inspect and copy court records. Bend Pub. Co. v. Haner, 118 Or 105, 107, 244 P 868 (1926). However, it is doubtful whether that common-law right encompasses the right to copy exhibits received in evidence. See State ex rel KOIN-TV v. Olsen, 300 Or 392, 400-07, 711 P2d 966 (1985) (assuming, arguendo, that a nonparty media organization had a common-law right to copy an exhibit from a civil trial, but concluding that that right was subject to the discretion of the trial judge).

§17.2-2 Article I, Section 10, Right to Access Court Proceedings

Article I, section 10, of the Oregon Constitution mandates that "[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay." The Open Courts Clause protects "the [public's right] to scrutinize the court's administration of justice by seeing and hearing the courts in operation." Jack Doe 1 v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 352 Or 77, 93, 280 P3d 377 (2012).

NOTE: The second clause of Article I, section 10, which reads "every man shall have remedy by due course of law for injury done him in his person, property, or reputation," is referred to as the Remedy Clause. Smothers v. Gresham Transfer, Inc., 332 Or 83, 91-92, 23 P3d 333 (2001). The protections afforded by the Remedy Clause, which are distinct from those guaranteed by the Open Courts Clause, are discussed at length in chapter 5.

Oregon's open-courts provision applies to judicial proceedings, civil and criminal alike. State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or 277, 283, 613 P2d 23 (1980). Although the Oregon Court of Appeals has concluded that the open-courts provision applies only to judicial branch activities, Oregon Newspaper Publishers Ass'n v. Dep't of Corr., 156 Or App 30, 37, 966 P2d 819 (1998), rev'd on other grounds, 329 Or 115, 988 P2d 359 (1999), the Oregon Supreme Court has not expressly so limited the provision's reach. See Jack Doe 1, 352 Or at 90 (defining court for purposes of Article I, section 10, as a "governmental institution, comprised of judges and their supporting staff, whom the law charges with the responsibility to administer justice"). Article I, section 10, does not require the public release of trial exhibits at the close of trial. Jack Doe 1, 352 Or at 86. Whether Article I, section 10, requires public access to trial-court case files remains an open question. See Jack Doe 1, 325 Or at 102 n 10.

Oregon courts apply the methodology set forth in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), when interpreting the open-courts provision. Jack Doe 1, 352 Or at 85. Pursuant to that methodology, courts examine (1) the text and context of the provision, (2) the historical circumstances that led to its creation, and (3) the case law surrounding it to determine the original...